There is some confusion in the pleadings in this case; but the plaintiff sets out the indorsement on the back of the warrant, and the defendants, Hill and Jones, admit it, and, as I understand their answers., they also admit that the plaintiff was taken to jail by authority thereof. The defendant Meeker put in the answers for the other two defendants, as their attorney, but that is no admission of the truth thereof on his part; and his answer may be considered a general denial of this part of the complaint. As to Hill and Jones, perhaps they were not entitled to the benefit of the 1st and 2d subdivisions of the charge to the jury. However, the jury must have found the imprisonment was by the direction contained in the indorsement on the back of the warrant.
When the cause was before us on the former motion for a new trial, this subject was fully discussed, and on the last trial I intended to rule in conformity to the views of a majority of the court upon this point, as then expressed. The correctness of that ruling is the principal matter now under discussion.
Where a magistrate has jurisdiction, and acts within that jurisdiction, he is not liable in an action of trespass, for mere error in judgment. If he acts from malicious or improper motives, or in bad faith, in some cases he may be liable in another form of action. But if he has no jurisdiction to do the act complained of, he is liable; and if that appears upon the face of the papers, as a general rule all concerned are trespassers. (Reynolds v. Orvis, 7 Cowen, 269. Evertson v. Sutton, 5 Wend. 281. Lewis v. Palmer, 6 Id. 867. Merritt v. Read, 5 Denio, 352. 3 Hill, 458. 5 John. 282. Tate v. Chambers, 3 N. & M. 523, Edwards v. Ferris, 7 C. & P. 542. West v. Smallwood, 3 M. & W. 418. Caudle v. Seymour, 1 A. & E. 889. King v. Birnie, 5 C. & P. 206. Prickett v. Gratrex, 8 A. & E. 1020. Wedge v. Berkeley, 6 Id. 663. Rex v. Constable, 1 Q. B. Rep. 894, n. Cupps v. Denden, Cowper, 640. Case v. Moun*307tain, 1 M. & G. 257 and notes.) If Rogers v. Mulliner, (6 Wend. 600,) and Hoose v. Sherrill, (16 Id. 33,) are law, still the principle .upon which they were decided does not protect the defendants, if the imprisonment was by the authority of the indorsement, and that was illegal.
The statute requires the warrant- to command the officer to whom it shall be directed forthwith to take the person accused and bring him before the magistrate, (2 R. S. 707, § 3,) except in certain specified cases. (2 R. S. 707, 8, §§ 11, 12. Laws of 1845, ch. 180. People v. Fuller, 17 Wend. 211.) And so are the forms of warrants of arrest, to answer upon a charge of crime. (Barb. Cr. L. 460, 468, 574.) A party may be arrested on a charge of felony, without warrant, by an officer; if he has just grounds of suspicion. (Samuel v. Payne, Doug. 359, (345.) 1 Russ. Cr. L. 595. Arch. Cr. L. 445. 2 Phil. Ev. 425, n. Davis v. Russel, 5 Bing. 354. Cowles v. Dunham, 2 C. & P. 565. Holley v. Mix, 3 Wend. 350.) These were cases of felony and not misdemeanors. The officer merely acts ministerially even when he arrests on suspicion. (Ledwith v. Catchpole, note to McCloughan v. Clayton, 1 Holt’s N. P. 478.) But even in that case, the duty of the officer to take the party arrested before the magistrate, is the same.
General warrants, except perhaps when issued by the secretary of state, are held void in England. (Money v. Leach, 1 W. Bl. 555.) And a warrant should not be returnable at a particular time'; for that might detain the party in custody, and the law has fixed the time for its return, which is immediately. (1 Chitty’s Cr. L. 40, 59. Barb. Cr. L. 460, 467. Matthew v. Parker, 8 T. R. 110. And see Queen v. Douney, 7 Q. B. 281. Wright v. Court, 4 B. & C. 596.) If this direction is to be considered a part of the warrant, it makes it returnable at a future day. In Wright v. Court, the constable was held liable for false imprisonment, because he kept the prisoner until the prosecutor could get witnesses. No doubt the justice, on the accused being brought before him, may detain him a reasonable time for examination. ( Wright v. Court, supra. 2 Hall, 120. Davis v. Capper, 10 B. & C. 28. Ex parte Smith, 5 Cowen, *308273. 1 Chitty Cr. L. 73. Moor, 408. And see Lock v. Ashton, 12 Q. B. 871.) And that may be done without warrant. (1 Chitty's Cr. L. 73. 1 Hale, 585.) Therefore if there was authority to commit at all, in Ex parte Smith, (supra,) no objection could have been taken to the form. But the difficulty here is, the justice ordered the accused to be committed without first being brought before him. The case of Boughton v. Mulshoe, (Moor, 408; S. C. 20 Vin. 482,) turned on the fact that the plaintiff was in the presence of the justice, when the latter ordered the defendant, a constable, to take him into custody till next day. Even that will not be sufficient, without good cause. In Edwards v. Ferris, (7 C. & P. 542,) the plaintiff got drunk on Sunday night, and was locked up till Monday noon by the constables, and then brought out by them, and on their meeting the defendant, a magistrate, in the street, he said to them “ take him back; I will see him to morrow,” and he was taken back and brought out the next day. The magistrate was held liable for false imprisonment. Patterson, J. before whom the cause was tried, said: “ It would be a very fearful thing indeed if any magistrate is at liberty, meeting a man in custody in the streets, to say, take him back for 24 hours and bring him up to-morrow.’ ” Leave was granted to move to enter a nonsuit, but no motion was made.
[Clinton General Term, July 4, 1853.Hand, Cady and C. L. Allen, Justices.]
I have no doubt the magistrate in this case acted from an honest belief that he was authorized to make the indorsement on the back of the warrant. But as to that it was an excess of jurisdiction, and wholly illegal; and therefore not a question of good faith, but of authority. The law watches personal liberty with vigilance and jealousy ; and whoever imprisons another, in this country, must do it for lawful cause and in a legal manner.
Judgment affirmed.